By Mary Silverberg

If your spouse is not used to asking questions about your practice, the two of you may want to rethink this position. Too many lawyers’ spouses, female or male, are fond of saying they are not attorneys and don’t need to know about the practice. They sometimes assume that because the lawyer has an assistant, he or she will know what to do in the event the lawyer dies or becomes unable to handle professional duties. Unfortunately, the underlying reason for this attitude is often simple denial: “I don’t want to face the fact that my spouse might die before I do.”

This is an intimidating prospect for any couple. Yet with the ethics and practice responsibilities that cover lawyers’ code of confidentiality, case transfers, and even file storage and the like, it is essential to face such a scenario and develop a plan that your spouse, your children, or your colleagues can follow to cover the many complexities involved in closing down a legal practice, particularly a solo practice. Why? You worked diligently over a lifetime to establish a financially viable practice and gain the respect of clients and the legal community. As a couple, you developed a way to provide for your family while helping others. But just as a law practice and its clients must be protected while the lawyer is alive, the need to protect them becomes an even greater mandate after the lawyer’s death.

Consider how you might answer this question: Where do you want the benefits of all this hard work to go? I spent many years married to my lawyer-husband, Steve, without caring very much about the nuts and bolts of his practice. But when a friend of mine was caught totally off guard by her husband’s dropping dead of a heart attack at the courtroom in the middle of a trial, I was deeply affected. So, after much urging on my part, Steve and I began to put a plan in place. Remember: When the business of your practice needs to be settled, your spouse will still be grieving your loss—and in an extremely emotional and vulnerable state even without the burden of correctly closing the business.

Letting Go

Initially, I would like to ask all lawyers to reflect on the factors that led you into solo or small firm practice in the first place. Be honest—it’s likely that one of them was that you wanted your business conducted in a certain way: yours. But when you make the calls for everything important, how do you admit to yourself, I can no longer do this? If you are given the gift of knowing that you will die soon, and the necessary time to prepare for that journey, you will at some point need to say to yourself and your spouse, I’m done, and literally walk away from your desk.

The last few months of his life, Steve had worked very hard to settle cases and tie up loose ends as much as he could. Closing his practice was one of the most difficult decisions I’d ever seen him make. He could not let go. Finally, an attorney friend and I, full of intensity and pain, asked him one afternoon, Is this how you want to spend your last few weeks of life? He thought for a moment, took off his glasses, and wheeled his wheelchair out of the room. He then got on with the process of dying—and from then on, displayed as much courage and dignity as he had shown in life.

As I stated earlier, if you are fortunate enough to have a prognosis for the time you have left, you will be able to see the people you need to see and say the things that need to be said. If you are not granted this gift of time, you will surely need to have data accessible and procedures prearranged and in place, including full names and phone numbers for everyone and anyone those closing your practice may need to contact. I cannot stress this last point enough: names and phone numbers!

Planning As a Couple

  • Do you have a will and do you and your spouse know its location? If you are incapacitated for a time until your death, does your spouse have power of attorney? For specific or general purposes? Do you have a medical directive in place? Do you have a DNR (do not resuscitate) order, or have you left it to chance—remember the story of the shoemaker and his barefoot children?
  • In maintaining your practice, you likely became used to calling the shots and planning things the way you wanted them. Your spouse is likely used to this mind-set. During my husband’s last two weeks in hospice at a local nursing home, we agreed that I would make his funeral arrangements. Although I was fine with this, I still took someone with me when I did it—which leads me into one of my “favorite lawyer stories.” Everyone has them, and although it may sound a bit weird, this is mine. (Remember, after 33 years of marriage, I am ever the lawyer’s wife.)
  • The funeral director and I reviewed the arrangements. Though I understood the itemized paperwork, it all seemed so permanent. As a well-trained lawyer’s wife, I asked about the three-day recession period pertaining to signing a contract. The mortician smiled and stated, gently, “This doesn’t often come up in my business.” When I told this tale to my husband, he found it quite amusing and assured me I had done well in planning his funeral according to his wishes.
  • Does your spouse have access to the names and numbers of individuals at your local bar association or ABA office to use as resources?
  • Is your spouse familiar with the terms and provisions of your professional liability insurance? Is it up to date? When is the premium due? I recall speaking with Steve’s malpractice insurance carrier during the last weeks of his life. As it turned out, he died on the very day his insurance expired. Had he lived even one more day, I would have had to continue the policy for another six months or one year. As it was, the agent and I discussed the need for a “tail” to cover past work but no future work. Does your spouse have your agents’ name(s) and phone number(s) and your policy information?
  • Do you have a backup attorney(s) to help you with court appearances or filings that you cannot handle yourself? If you’re in a small firm or partnership, you likely already have built-in backup. If you are a solo, you should make such an arrangement with one or two trusted colleagues.
  • Do you have plans regarding your assistant—a plan your assistant should follow in the event of your incapacitation as well as a plan for his or her own future? As you already know, while your spouse is with you outside the office, your trusted assistant is with you for the entire workweek. Such assistants know you well. They keep your schedule and may even pay your bills. They know which courts you need to be in and when. They know your clients, other attorneys, and their secretaries. They are familiar with your files, with what is stated in them and what is not.
  • Be sure that your spouse understands that your assistant is one of your (and your spouse’s) strongest allies. Also remember that your assistant, too, has suffered a loss and will want to help your family as much as possible to ease the transition. Also remember—especially if your assistant has been with you for a long time—that your assistant will be wondering, What will happen to me now? Will you give a bonus, regular salary, some form of severance pay, or other compensation for staying on through the transition? Who will supervise your assistant? Who will write the paychecks? Is your spouse familiar with your assistant’s salary and benefits? Who will continue to oversee employment records?
  • Who among your most trusted personal lawyer-friends will make themselves available to your spouse? Remember, your spouse always had his or her own personal attorney. Now that attorney is gone. This is something I truly miss—my own “in-house” attorney. Some tasks will require immediate attention, for example: Will you need to go through probate (which will depend on your situation and the rules in your state)?

Planning As a Business

  • Who will notify the clients that you can no longer practice or have passed on? While the living are in the middle of funeral arrangements and mourning, many people will need to be notified by letter, fax, or telephone—including clients, law firms with cases pending, and the courts. Continuances for court appearances must be obtained. Clients must be informed, in formal letters, of your passing and of who now handles the file, in order for them to decide whether to remain with the attorney who now has their file, to request the file be sent to a different attorney, or to end the relationship and pick up the file themselves.
  • Files, files, files! First of all, does your filing system look like Fibber McGee’s closet, or does it have the Martha Stew-artish touch of precision and organization? Which files are open or closed? How will someone know—unless you have in place a system with forms clearly indicating the status of each case? Which files are “inactive” and in storage? Are they labeled and dated for when they can be shredded? Who will do this? When we went through this process, I was grateful that my husband had been so organized and methodical. During his last month of life, from his wheelchair, he personally supervised the sorting and shredding process. He arranged for another local commercial collection attorney to take a large group of open cases.
         During the last two weeks of Steve’s life, while he was at the local nursing home under hospice care, that attorney and I spent several late evenings sorting and labeling files. I found myself just shifting into auto-pilot and doing what I had to do—all the while being well aware that the files represented events in people’s lives, the outcomes for which my spouse was still legally and ethically liable. At that point I also knew that the rest of my husband’s files would soon be assigned to a court-appointed trustee who would then take on responsibility for them. The last few weeks of completing this process felt tremendously burdensome (and this was with planning).
  • Are your client fund accounts in order? They had better be perfectly in order. The attorney handling your cases will disburse monies as required. Determine the fee arrangements for cases the attorney will settle after your passing. Are other non-client business accounts in your name only? Be certain your spouse or assistant has access to and can pay any outstanding bills, and plan how the remaining money will be disbursed.
  • Do you rent office space or own your building? If you rent, does your spouse or assistant know where the lease is, what the rent is, and how to resolve any special conditions in the lease? The name and number of the building manager or leasing agent? If you own your building, do you need to go through probate? Who has the deed to the property? Will decisions need to be made regarding future use or sale of the property? Do you have tenants? Can they remain in the building? If yes, are any of them prepared to purchase the building? Do you have a trusted real estate agent who can handle this part of your estate? Again, have you left names and contact information for all these people?
  • What are your plans for your office equipment? What about items such as photocopiers or telephone systems that may be leased? What are the terms? What about computers, printers, scanners, and other digital equipment—should they be sold? Should you donate them to a nonprofit or the local school system? Are any items too old to rank as gifts? If so, here’s a great method for disposing of old hard drives while ensuring that all client information is totally destroyed: Stand on the top step of a home or office staircase and throw the drive box to the ground—two or three times, just to be sure (I found this very therapeutic). What about information on cell phones, Blackberrys, and PDAs?
  • Office furniture: Sell? Store? How? If you decide on storage, will you need commercial storage space or a self-contained portable locker? Professional/commercial storage is expensive. Also, it won’t be any easier for your spouse and friends to sort through the belongings in your office than through those at home. My husband had many mementos of his life at his office: family pictures, a wide variety of artwork, photographs, awards, and gifts given to him through the years. These items will need special attention.
  • What about professional resources and subscriptions? Does your assistant have the information necessary to discontinue Lexis/Westlaw service, ABA and other legal reading materials, professional memberships, etc.?
  • Taxes, taxes, taxes! Yes—all of them. If you own your building, have you planned for real estate taxes? Local or state attorney property taxes? Who has access to your IRS records, including several precious years’ tax returns and quarterly IRS and Social Security payments for you and any of your employees? Does your spouse or assistant have your accountant’s contact information? (You may also need this for state income tax forms.) Your spouse most probably will spend quite a bit of time with attorneys and accountants in the first year after you are gone; planning may help shorten these sessions.
  • Is state and federal tax information about your assistant and other employees readily available? Your spouse will need to provide the information for your accountant to prepare all W-2s for the following year. Be ready.
  • Access! Do your spouse and assistant know how to access all of your password-protected electronic means of communication, including all mobile devices? Are the passwords all up to date? Locating information and compiling and printing out lists for client files, clients’ fund accounts, office accounts, etc., are extremely important but exceedingly time consuming.
  • What do you want done with your professional wardrobe? This is another intimate, vulnerable area to deal with, one we also don’t like to think about it. Because my husband had a large wardrobe of courtroom clothing, I wanted it to go somewhere it would be needed, appreciated, and put to use. After much detective work, I found a local nonprofit organization called Clothes Make the Man, which collects and distributes work attire that is in style and in excellent condition to men referred by agencies who are returning to the workforce. Many come from halfway houses or prisons, go through a training program, and then select a complete suit of clothing for their job interviews. After one year of employment, they may return for a second suit. A very appreciative director personally came to my home to pick up suits, sport jackets, dress pants, business shirts, ties, belts, shoes—even dress hats and an overcoat. I received a tax deduction, but even better was the satisfaction of doing something positive even within my grief. The organization’s website is www.cmtm.org; a Google search should turn up a similar organization in your state. Your local YWCA may also participate in its similar Working Wardrobe program for women returning to the workforce.
  • After your passing, your spouse and family members will be receiving many cards, letters, and e-mails that offer condolences, make charitable contributions in your memory, and share reminiscences about you. Your spouse may receive heartwarming notes from people you might never have thought to hear from—other attorneys, law school professors, judges and courthouse staff—all of whom took the time to share their memories and thoughts about you with your spouse. We never can be certain of how we’ve touched another’s life. Though your spouse may shed many tears, he or she will welcome the tributes and treasure them. I certainly did.

Mary Silverberg is a speech/language pathologist working in the Connecticut public schools. Her husband, Steve Silverberg, was an attorney in solo practice in West Hartford, Connecticut, specializing in commercial collections. After a long and courageous battle with cancer, he died in September 2004. A plan was in place to settle his practice. Mary can be reached at (860) 232-7333.

Copyright 2006

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